LUVE: What we don’t need now

When voters submit an initiative to enact a law, Section 9212 of the California Elections Code authorizes the relevant legislative body to commission a report analyzing the impacts the initiative would have, including, specifically, its impact “on the use of land, the impact on the availability and location of housing, and the ability of the city to meet its regional housing needs.”

The State of California considers those issues to be important, and so does the Santa Monica City Council. When presented last month with Residocracy’s “Land Use Voter Empowerment” initiative (LUVE), the council requested a Section 9212 report, which it received from city staff last week. The council will consider the report at its meeting tomorrow night.

The 65-page report is negative about LUVE, which would, in general but with some exceptions, require voter approval of new construction taller than 32 feet. The report finds not only that LUVE would have many negative unintended consequences, such as making post-earthquake reconstruction problematic, but also that LUVE would have a negative impact on its ostensible intended consequences, such as preventing worsening traffic congestion and gentrification.

The report also explains why LUVE, or most of it, would be unenforceable under state law, because state law does not allow voter approval of administrative decisions, and how legislation Gov. Jerry Brown is about to get passed streamlining approvals of certain urban residential developments will likely override much of LUVE.

For all that, the scope of the Section 9212 report does not extend to the two most damning arguments against LUVE: one, that there is no overdevelopment crisis in Santa Monica that requires the drastic solution of voter approval over development, and two, that it would be a nightmare to have to vote on development decisions.

As for point one, for more than 40 years, with little resort to ballot box government, Santa Monica has closely regulated development. Ever since the public rose up in the ’70s and elected new city councilmembers to stop the destruction of the Pier and the building of an island in Santa Monica Bay, there has been a consensus that the City needs to control development. While land use politics in Santa Monica can be remarkably bitter, the differences Santa Monicans argue over are small when looked at objectively, or regionally, i.e., compared to growth in the surrounding City of L.A., L.A. County or southern California as a whole.

Contrary to Residocracy’s rhetoric, Santa Monica has intensified its regulation of growth over the past 20 years. A recent analysis showed that since 2003 only about an average of 48,000 square feet of net new commercial space has been built in Santa Monica annually; compare this to the 9,000,000 square feet of office development that was approved in the ’80s and built by the mid-’90s.

Residential development has also been modest. Since 2003, Santa Monica has seen an average net increase of about 230 new housing units a year. Given that Santa Monica has nearly 50,000 units in total, this increase is only about half of one percent per year. This is not massive overdevelopment. It’s fear mongering to claim, as Residocracy does, that LUVE is needed to prevent future overdevelopment.

This doesn’t mean that there won’t be controversies about development in the future. The City is in the process of making decisions for the next 20 or 30 years of development in downtown. Vigorous debate is healthy and to be expected. But based on the history, there’s no reason to suspect that planning staff and our Planning Commission and City Council can’t make intelligent decisions that balance the pros and cons of new plans and proposals.

As for the second crucial argument against LUVE, do we really want to vote on development proposals and planning documents? Is ballot box government a good idea?

Before you answer that question, consider that in November there will be 17 statewide measures on the ballot. Things aren’t yet settled, but it looks like there will be at least a dozen county, city, or school measures also on the ballot, including several crucial tax measures. It’s been a century since the “Progressive Era” reforms brought the initiative and referendum to California. Was it ever intended that voters would have a ballot with 30 measures to vote on?

For every great initiative like the Coastal Act, there are dozens of nightmares. It’s not that initiatives don’t sometimes respond to real problems, but the nature of an initiative is to remove the flexibility to respond to change that is one of the virtues of representative democracy. Initiatives also have a multiplier effect, since they typically require more and more votes on matters that used to be routinely left to elected representatives. California government, for instance, at all levels has been hobbled by the restrictions of Prop. 13 and 218 on the power to tax. Weakening government has not made government better or improved the lives of Californians.

LUVE wants to do the same thing with the power to plan. According the City’s Section 9212 report, currently there are 12 proposals to build apartments in Santa Monica and 10 of them would require voter approval under LUVE. Assume that even half the developers decided to brave the process instead of taking the easy way out and building low-slung retail or offices, which are quite profitable (but which, by the way, generate more traffic than housing). Would you want to vote on five apartment buildings in 2018? How many campaign mailers can your mailbox hold?

Let’s say you do want to vote on them all—are you ready, willing and able to review the hundreds of pages of documentation and plans necessary to conscientiously evaluate each project?

Thanks for reading.

A map from the Section 9212 report (fig. 4, page 26) showing all the buildings (residential in green, commercial in pink) in Santa Monica that would have required voter approval if LUVE had been in effect when they were built.

A map from the Section 9212 report (fig. 4, page 26) showing all the buildings (residential in green, non-residential in pink) in Santa Monica that would have required voter approval if LUVE had been in effect when they were built.

Moving goal posts and new players: the plight of anti-development politicians

After last night’s City Council meeting Councilmember Sue Himmelrich might understandably have a “no good deed goes unpunished” feeling. You see, Himmelrich proposed that council direct staff to prepare a ballot measure for November that would be an alternative to Residocracy’s LUVE initiative. Himmelrich, whom Residocracy endorsed when she ran for council in 2014, proposed a measure that would give voters the right to approve large projects, but one that would not be as draconian as LUVE and therefore (presumably) have a better chance of passing. Residocracy, however, slammed her and her proposal even before the meeting began.

On Monday, on Residocracy’s Facebook page, Residocracy’s Tricia Crane derided Himmelrich’s proposal, calling it “an attempt to confuse voters,” and one that showed the “desperation” of councilmembers (presumably Himmelrich) “to retain power and defeat the LUVE initiative.” Ouch. (Later Crane, I suppose to make sure her sentiments were not limited to Facebook users, forwarded the Facebook exchange to her neighborhood group, Northeast Neighbors—that email must have gone viral, because even I received it.)

Crane was right about the potential confusion. (If not about Himmelrich’s motivations, which seem sincere.) As pointed out last night by, of all people, Residocracy-nemesis Councilmember Terry O’Day, having two similar measures on the ballot would create confusion. If the anti-development vote were split, probably both would lose. The cynical thing would have been if the councilmembers opposed by Residocracy had supported Himmelrich’s motion. (Neither they nor any other councilmembers did, and the motion died without a second.)

As for Crane’s attack on Himmelrich, the first-term councilmember is not the first anti-development politician to engage the wrath of anti-development constituents feeling scorned. Even Councilmember Kevin McKeown, over many years the most consistent anti-development voice in Santa Monica politics, is now enduring nasty attacks because of his opposition to LUVE.

There’s a pattern. History repeats. (Not sure just when the attacks might have been tragic, but certainly, with the attacks on McKeown and Himmelrich, we’ve now reached farce.) For reasons that I’ll get into below, at some point anti-development politicians and their anti-development constituents tend to part ways. Consider what happened the first time Santa Monica elected a City Council majority consisting of members who had all been elected with anti-development support.

That was in 1999, when after a special election Richard Bloom joined councilmembers McKeown, Michael Feinstein, and the late Ken Genser, all of whom had been elected with anti-development support. In short order the four proceeded to replace the entire Planning Commission with anti-development activists drawn from neighborhood associations. Long-term planning in the City came to a stop, as the new commissioners, led by former councilmember Kelly Olsen, browbeat planning staff, whom they accused of being in the pocket of developers.

But the anti-development majority began to fall apart in 2001 when Genser, Santa Monica’s original anti-development councilmember, voted in favor of Target; the other three were opposed. Then in 2003 Feinstein infuriated the anti-development side by voting against reappointing Olsen to the Planning Commission. Not entirely coincidentally, Feinstein lost his bid for reelection in 2004.

As for Bloom (today, of course, Assembly Member Bloom), his views evolved as he became more involved with social and environmental issues. Although Bloom’s original political base was among anti-development homeowners in Sunset Park, by 2005 or so he had become a strong supporter of housing and economic development. By 2008, both Bloom and Genser opposed the RIFT initiative, and were on the outs with their original anti-development supporters.

So why do anti-development councilmembers and their constituents become estranged? The anti-development side will tell you it’s because all politicians are corrupt and ultimately get bought off by developers, but empirically that’s not true. The real reasons are more complex.

Briefly put, when it comes to the goals of the anti-development side, as soon as one goal is achieved, a new, more extreme goal is created. In Santa Monica, where everyone involved in politics wants to regulate development to some extent (we’re all Democrats, right?), this means that a politician elected on a platform advocating one level of regulation soon finds, after voting for regulating development at that level, that some aggrieved constituents want him or her now to adopt higher levels of regulation, levels that the politician might not be comfortable with, whether because he or she is aware of legal restrictions or simply because he or she doesn’t want to go that far in preventing change.

Consider what’s going on now. In 2004 City Council began the LUCE process, and responded to anti-development sentiment (i) by pushing nearly all new development into commercial and industrial districts comprising a small fraction of the City’s land area (a good idea) and (ii) by making nearly all significant development discretionary (not such a good idea). In 2010 the LUCE was finally adopted—with the support of the anti-development community.

But when, a few years later, City staff was drafting the new zoning ordinance, suddenly there was a new target: the largest projects allowed under LUCE, discretionary projects called “Tier 3.” Last year when the zoning ordinance finally came to a vote, the new anti-development majority (McKeown, Himmelrich, Tony Vazquez and Ted Winterer) voted to eliminate nearly all Tier 3 projects.

McKeown, Himmelrich, Vazquez and Winterer retained, however, LUCE’s Tier 2, the zoning standard that allows the continued building of the kind of housing (apartments over ground floor retail) that has been the standard in Santa Monica since the ’90s. Moreover, the four have voted several times to approve more of these apartments. These votes have infuriated the extreme anti-development element represented by Residocracy, i.e., those Santa Monicans who insist that new apartments are incompatible with the character of a city that is 70% renter. Which is why Residocracy has now brought forward LUVE, which would for all practical purposes eliminate Tier 2.

So there you have it, anti-development mission creep: limit development to commercial areas and make nearly all of it discretionary; eliminate Tier 3; eliminate Tier 2. If you don’t follow us every step, you’re a paid stooge for developers.

There’s another factor, too: the constant entry of new people into the political process from the anti-development side, people who don’t necessarily have knowledge of the anti-development battles that preceded their involvement. Ten years ago, after more than 25 years of anti-development politics (and policies, many good, to control growth), the new group in town was the Santa Monica Coalition for a Livable City. SMCLC, acting as if no one had ever noticed traffic before, came up with the RIFT initiative in 2008, but SMCLC now takes a backseat as Residocracy drives the agenda. It’s telling that the three key leaders of Residocracy—spec mansion developer Armen Melkonians, North of Montana realtor Kate Bransfeld, and Tricia Crane, who formerly directed her activism to the School District’s special education programs—did not participate in any significant way in local development politics until three or four years ago.

It’s this combination of shifting goal posts and new players, not developer money, that causes the inevitable disconnect between anti-development politicians and their original anti-development base.

Thanks for reading.

Housers, united by LUVE

So far I’ve avoided writing about Residocracy’s “Land Use Voter Empowerment Initiative” (LUVE), but now that the Santa Monica City Council will be discussing its merits in a few weeks (at the council’s July 12 meeting) I’ll stop avoiding the unavoidable.

What’s most interesting to me as a political observer is how Residocracy has, with LUVE, fractured the anti-development coalition that has been so successful over the years in setting the Santa Monica political agenda. This is most clearly evidenced by the fact that Council Members Kevin McKeown and Ted Winterer, two of the most articulate voices skeptical of development in Santa Monica (and two of the city’s most popular politicians), are both strongly opposed to LUVE.

Both McKeown and Winterer were strong supporters of the “Residents Initiative to Fight Traffic” (RIFT), the measure that the Santa Monica Coalition for a Livable City put on the ballot in 2008. But LUVE is quite different from RIFT.

RIFT only limited commercial development, which put RIFT squarely in the mainstream of anti-development politics in Santa Monica going back to 1981 when Santa Monicans for Renters Rights (SMRR) first took power in Santa Monica and the City became, to borrow from historian William Fulton (The Reluctant Metropolis), the first city to challenge the Los Angeles growth machine. In fact, there were many of us who opposed RIFT only because of its bringing ballot box government into the planning process, not because of its goal of reducing commercial (particularly office) development.

While it is true that during the ’80s SMRR-dominated city councils enacted laws making it harder to build housing (and that during that time little housing was built), paradoxically the purpose of the laws was to save housing. The idea was to preserve existing apartments by making it more difficult and less profitable to tear them down to build condominiums. When the City was sued on the basis that these impediments to building housing violated state law, and lost, the City’s response was brilliant: it maintained, even strengthened, the obstacles to building in residential districts, but satisfied state law by making it easier to build housing in commercial districts (particularly downtown).

I well remember in the mid-’90s, when the City Council was considering the new downtown zoning, listening, at a meeting of the Ocean Park Community Organization, to SMRR leader Dennis Zane try to persuade the late anti-development leader Laurel Roennau why it was good to build housing downtown. (The strategy of protecting neighborhoods by focusing development in commercial zones later became the organizing principle for the LUCE updates to Santa Monica’s general plan.)

Indeed, housing, particularly affordable housing, has always been central to SMRR’s agenda, and has always been popular with Santa Monica voters. When SMRR first challenged the growth machine in the ’80s, one of its goals was to require office developers to pay for affordable housing. In 1990 voters passed Measure R, which requires that 30% of the housing in the city be affordable to low and moderate income households. In 1999 Santa Monica became one of the few cities where a majority of voters approved the building of affordable housing.

The big battles over development since the ’80s have been about commercial development, not housing. There was the Civic Center Plan, which went to the ballot in 1994, and where most of the controversy concerned the expansion of RAND’s offices and RAND’s entitlement to build 250,000 square feet of spec offices. Then there was Target in 2001, a 100% commercial project. Now we have fights over hotels that are essentially commercial developments even though they include housing in the form of condos. Until Residocracy came along, there was little controversy (and that primarily about design issues) over the housing built in Santa Monica since the new zoning in the ’90s, nearly all of which was built downtown.

The recent Paper Mate battle is another case in point: the problem with the project was its adding hundreds of thousands of square feet of offices. At the council meeting where the project was approved, Ted Winterer made a motion to approve it if the developer turned another (the fourth) of the project’s five buildings into housing; Tony Vazquez seconded the motion. If the developer had jumped up and said Yes!, the outcome could have been different. The project might have passed on a 6-1 vote; if so, SMRR would have been less likely to have supported Residocracy’s referendum to overturn the approval. (The vote might even have been 7-0; although McKeown had not said that he would have accepted the total size of the project, he, along with other many other opponents of the project, such as Zane, had said emphatically that what he wanted at the site was housing, not more offices.)

The proponents of LUVE know that they have a problem politically with the housing issue. In their statements and writings in support, they deny that LUVE would prevent housing from being built, and claim that LUVE would protect existing housing. The measure itself is drafted to present the illusion that it supports housing development: it exempts from the 32-foot height limit 100% affordable housing projects (but only up to 50 units, and with the demise of redevelopment it’s almost impossible to build 100% affordable projects anyway), and 77 properties identified as suitable sites for housing in the City’s general plan (but only up to a floor-to-area ratio (FAR) of 2.5, which would likely mean that a landowner or developer would instead opt for a by-right commercial development flying under the 32-foot limit).

Given this history, it shouldn’t be surprising to see this break between Residocracy, whose leaders have made clear their belief that Santa Monica does not need more housing, and others who are skeptical about growth, but who nonetheless know that we need to house the next generation. They read the papers, and nearly everyday there’s an article about California’s housing crisis.

Although I often quote the Freud phrase, “the narcissism of small differences,” to explain how people largely in agreement can nonetheless have bitter disputes over the iota’s of their disagreements, it’s dismayed me that in Santa Monica people who largely share the same communal values nonetheless continually find themselves in noisy and acrimonious disputes when it comes to development. (And I’ll include myself.)

But as I said, it shouldn’t be surprising that “housers” in Santa Monica have largely united against LUVE. It’s like the Hillary/Bernie fight. At times bitter, but as Paul Begala said, “nothing unites the people of Earth like a threat from Mars.”

Thanks for reading.

Making laws fuzzy doesn’t make politics more clear

I’ve been traveling most of the past month, to places as far away as medieval Spain or as close as the contemporary music scene in Ojai. It’s hard to get Santa Monica out of one’s mind, however. I left town the day Expo opened, but I was reminded of it, and certain controversies involving it, when in Spain I kept seeing trains in the middle of streets and plazas.

Here’s a picture of the tram stop that’s in front of Seville’s cathedral — evidently Spanish people don’t need fences to keep them from walking in front of trains. I can’t imagine that they are that much smarter than we are.

Seville, Spain.

Seville, Spain.

Meanwhile, the big news here while I was gone was that Residocracy’s “LUVE” initiative qualified for the ballot. Tonight the City Council will have the opportunity to either adopt the initiative or put it on the November ballot, but based on the alternatives set out in the staff report, the likely scenario is that the council will postpone action while City staff prepares an analysis of the initiative. (But don’t expect environmental review. In the great exception to the California Environmental Quality Act (CEQA), initiatives, even if they are passed by a city council instead of being voted on, don’t have to undergo environmental review. So don’t expect this sweeping law to the get the review that one apartment building would get.)

LUVE will get the attention tonight, but there is another potential ballot measure on the council agenda that should not be ignored. It’s a proposal to amend the Oaks Initiative.

Readers will remember that last year City Council hired the attorney John Hueston to investigate, along with the Elizabeth Riel/Pam O’Connor case, how the Oaks Initiative was enforced (or not enforced) in Santa Monica. Oaks, passed in 2000, prohibits city officials, including council members, from receiving benefits, including campaign contributions, from parties who have received benefits voted for or conferred by the official. City Attorney Marsha Moutrie had refrained from having her office enforce the law because of her concerns about conflicts of interest she and the office would have.

Hueston, in the aftermath of his investigation, made various recommendations concerning Oaks, some of which make sense. He pointed out that the Criminal Division of the City Attorney’s office was “walled off” enough from advising city officials to be able to investigate Oaks complaints without having conflicts of interest, and he had various ideas about cleaning up ambiguous language in Oaks.

There’s one suggestion he made, however, that crosses a line into legal recklessness. This was his suggestion that the trigger for when the “no contribution” period would begin would be not when a benefit was conferred, but when the potential person to receive the benefit would apply for the benefit, or even, in some circumstances, when the future applicant even begins to consider applying for the benefit. (The “twinkle in his eye” moment?)

When Hueston proposed this at the council meeting when he presented his report, he was questioned by Council Member Gleam Davis about how this could be enforced when it was unclear how city officials such as council members (who are not involved in processing applications) could know when the no-benefit period would start. Hueston’s answer was to say that that was the idea, that as former prosecutor he liked it when rules were fuzzy, because that gave prosecutors more flexibility.

Wow. There’s no rule of law when laws are vague.

As for the purpose of Oaks, this change would do nothing except shift more campaign spending into independent campaigns, known elsewhere as PACs, and make our politics less transparent, not more. Speaking as a former candidate, the limits on campaign financing that we have in Santa Monica, including Oaks, have not made our politics more pure.

Running for office is expensive in Santa Monica since it’s hard to reach voters other than by mail, and with campaign finance limits, it is virtually impossible for a candidate to raise enough money to run for city council in Santa Monica. When candidates can raise money to run their own campaigns, they not only can control their message, but they are also responsible for that message and can be held to account for the sources of their funding. When candidates can’t raise money, candidates with their own money to spend (and when I ran I was in that category) have an advantage.

Instead of individual campaigns controlled by candidates, Santa Monica’s politics revolve around independent expenditure campaigns, which include Santa Monicans for Renters Rights (SMRR) and other, smaller groupings of residents, unions, and business-funded campaigns. Anyone can contribute unlimited amounts to these campaigns, regardless of Oaks or any other campaign finance laws, and these campaigns choose their own slates, often linking candidates who are otherwise not likely to be linked.

Hueston’s proposed change to Oaks would make things worse.

Thanks for reading.

_______________________

Please note: before the City Council’s meeting tonight (i.e., at 5:30), there will be a community vigil in front of City Hall to be held in the aftermath of the Orlando attack.

Santa Monica Airport: wheels of justice speed up a bit

The wheels of justice have ground slowly when it comes to the Santa Monica Airport, but yesterday a unanimous three-judge panel of the Ninth Circuit Court of Appeals kicked them into a higher gear with a ruling that upended the balance of power between the City of Santa Monica and the Federal Aviation Administration (FAA).

The unsigned, seven-page “Memorandum” decision reinstated the City’s lawsuit, filed in 2013, that asked that the federal courts declare what the City’s rights are to the land at the airport. In 2014 a district judge dismissed the case, ruling that the City had filed the action too late, i.e., after the applicable 12-year statute of limitations had expired. He ruled that the clock had begun to tick in 1948. That was when the City and the federal government signed a post-World War II “Instrument of Transfer” (IOT) that returned control of the airport to Santa Monica, but which contained a clause requiring Santa Monica to operate the airport in perpetuity. If the City didn’t operate the airport, then the IOT said that property the feds were transferring to the City would “revert.” In the lawsuit, Santa Monica argues that the perpetuity clause is unenforceable or, alternatively, that it was superseded by a subsequent agreement, in 1984, that allowed the City to close the airport after July 1, 2015.

In its appeal of the district court’s dismissal of the case, Santa Monica argued that it could not have known in 1948 that the land, as opposed to other property, could be subject to reversion, and that the 12-year period began in 2008, when the FAA first notified the City that if Santa Monica did not continue to operate the airport, the feds could claim the land.

It took almost two years for the City’s appeal to reach oral argument in the Ninth Circuit. Since hearing the case in March, however, the appeals court has acted fast. In yesterday’s ruling the court, echoing questions that one of its members, Judge Jacqueline Nguyen, had asked the federal government’s lawyer during oral arguments, found that the statute of limitations issue could not be decided separately from the substantive merits of the case. Specifically, whether the City was on notice in 1948 of a federal claim that would trigger the start of the 12 years depended upon whether the IOT threatened the City’s ownership of the land, as opposed to being applicable only to other property transferred from the feds to the City. Since the essence of the City’s case is that the IOT did not transfer ownership of the land, the court ruled that the scope of the IOT had to be determined before the statute of limitations issue could be determined. The court sent the case back to the district court for trial.

The Ninth Circuit judges went even further, however, and that’s where the ruling fundamentally changes the litigation landscape. While the court said it could not determine from the record what the City knew or should have known in 1948, and left that to the trial court, the judges were not satisfied with simply remanding the case. Instead, the court went out of its way to prospectively validate the City’s arguments that the 1948 perpetuity clause did not apply to the land, and prospectively invalidate as irrelevant the primary evidence the FAA has put forward as support for its argument that the perpetuity clause in the 1948 agreement is enforceable.

As for the City’s arguments, the court emphasized, by quoting three times from the IOT, that the IOT, including its penalties for violating the perpetuity clause, only applied to property transferred in the IOT. Pointedly, the judges reminded everyone that neither side disputed the fact that the City had owned title to the land when it leased it to the federal government during the War.

The evidence that the FAA has put forward to prove that the IOT did apply to the land consists chiefly of actions and legal opinions from the ’50s, ’60s and ’70s. For each case, the Ninth Circuit panel suggested reasons why the evidence could not prove that the parties understood the IOT to mean that the City could lose the land if it didn’t operate the airport.

The three judges, in effect, laid out the case the City should make at trial.

When asked by the Santa Monica Lookout News for the FAA’s reaction to the Ninth Circuit decision, a representative said that the agency was reviewing it. I imagine that this review will be accompanied by some consternation because, at the least, the FAA is now going to find itself in a place, an impartial federal court, where it did not want to be, litigating a question, the present day validity of the IOT, that it did not want to litigate.

On the other side of the coin, the decision validates a strategy that the City decided on a 2013 (disclosure: a strategy that I had advocated for previously), namely to seek a federal court declaration of its rights before doing anything that might precipitate a stronger reaction from the FAA.

Thanks for reading.

(The Ninth Circuit decision can be accessed here. It’s worth reading.)

How to plan a park; how to close an airport

A lot, as usual, is going on in Santa Monica, mostly of the garden-variety category, such as people filing petitions to stop change, but 30 years from now historians of the city are going to look back to our time mainly at two things: one, that on May 20, 2016, mass transit returned to Santa Monica, and two, that in 2016 the City and its residents were working hard to turn Santa Monica Airport (SMO) into the great park that people 30 years from now will take for granted. This post is about the airport.

To start, tomorrow night the Santa Monica Airport2Park Foundation is hosting an event where the public can learn more about the process, both procedural and intellectual, that is to going lead to the creation of a 12-acre expansion of Airport Park, representing the beginning of the conversion of the airport into parkland.

The event is a talk by designer Mark Rios, whom the City of Santa Monica has hired to design the new parkland. Tomorrow night Rios will give a preview of the public process for designing the park expansion that gets underway officially with a city-sponsored workshop in June. Rios will discuss his own process when tasked with designing a park, and what he sees as the challenges for this project. It’s worth mentioning that Rios is one of the most accomplished park designers in the country, if not the world. Among many other projects, he recently designed Grand Park in downtown Los Angeles. (He has also worked often in Santa Monica, so he knows the territory.)

Readers may also recall that in October 2013 Rios gave a fantastic talk, also sponsored by Airport2Park, showing how all over the world cities were turning airports and other industrial sites into parks. It was that talk that energized the political process to replace the airport with a park. Consider this is a return engagement for Rios.

The event is tomorrow night, at the Mt. Olive Church, 14th and Ocean Park Boulevard. Doors open at 6:30. For more information, and to RSVP, click here.

* * *

In March I wrote about a new “Part 16 Complaint” that aviation interests, including the National Business Aviation Association (NBAA) and the Airport Owners and Pilots Association (AOPA), had filed against the City with the Federal Aviation Administration (FAA). The NBAA and AOPA, and aviation businesses and pilots using SMO, alleged various ways by which the City was violating laws and FAA regulations in its operation of SMO. In particular, they complained that the City was not giving aviation businesses long-term leases.

When I wrote about it in March, the next step in the case was the City’s response to the complaint, which was due in April. The City filed its brief about a month ago. It is a relatively short (16 pages), but fascinating document. The City has engaged new aviation lawyers for this case, a firm called Anderson & Krieger, which has both an environmental practice and a strong practice representing municipal airports.

Initially the new lawyers’ brief follows, I have to say, a line of argument that I anticipated in my March post, namely that the City would use this new Part 16 action to make the argument that it has no obligations to any of the complainants because the City is no longer obligated to operate SMO. This is a logical argument to make from the twin facts that (i) the City has brought a case in federal court to prove that it has no obligations to operate the airport under the 1948 “Instrument of Transfer” by which the federal government returned to the City control of the airport after World War II, and (ii) the City is appealing the FAA’s 2015 administrative ruling that the City has to operate the airport until 2023 because of money the City received from the FAA in 2003. (In case you’ve lost track, the FAA’s “final” decision in that case is due June 15; if the FAA rules against the City, the City will appeal the case to the U.S. Court of Appeals.)

As anyone who has followed the federal litigation knows, the FAA has gone to extraordinary lengths to keep the question of the validity of the 1948 agreement out of court, and the City’s case about that is still marooned in the Ninth Circuit Court of Appeals. By bringing this case against Santa Monica, the aviation industry has, however, given the City the opportunity to litigate the 1948 agreement. As this latest brief, along many others the City has filed, shows, it’s not pretty for the FAA because in 2000 the FAA ruled, in another case involving leases, that after 2015 the City would have no obligation to operate SMO. The FAA is going to have to try to explain to a judge why it was wrong then.

Where the new brief goes further than any argument I predicted is that in it the City argues that the very fact that it is litigating its claims in good faith changes the legal landscape. While so far the aviation industry has used FAA administrative complaints to muddy the waters when it comes to the City’s rights, the City is turning the tables and arguing that the claims that it is litigating strengthen its rights as the owner of the airport land. As the brief states, “[u]ntil the City’s claims to be free of any continuing federal obligation to operate SMO as an airport have been resolved, the FAA cannot properly compel the City to give up the proprietary rights it is advancing in those [cases].”

Meanwhile, as has been reported, a major aviation business at SMO, and one of the complainants in the new Part 16 case, Justice Aviation, has settled with the City and is moving out. Justice is not the first nor will it be the last aviation business to leave. The City is already earning much higher rents from non-aviation tenants at SMO than it was from aviation businesses, rents that will someday pay for the operations of a park.

Thanks for reading.

P.S. After I posted this article earlier today, Airport2Park posted a terrific video interview of Mark Rios by Gavin Scott. The video was shot in Rios’ offices and it’s a great preview for his talk tomorrow night. To see the video, click here.

Hueston: you have a problem

In my post last week I wrote about certain aspects of John Hueston’s report to the Santa Monica City Council on the Elizabeth Riel firing and the Oaks Initiative. Last Tuesday evening Hueston presented his report to the council. There was a public hearing where members of the public gave their views, mostly about O’Connor’s culpability in the firing of Riel or, alternatively, her virtues as a longtime councilmember and regional leader.

As for Hueston’s report, he makes some good recommendations. For one, Hueston recommends that the City use, except in unusual circumstances, a formal interview process when hiring “at will” (i.e., non-civil service) employees, and identify ahead of time whether a position is politically sensitive, to allow questions in the interview process about applicants’ histories of political activities specifically relating to councilmembers with whom they may need to interact. The latter recommendation more or less tracks the law as Federal District Judge Beverly Reid O’Connell described it in her rejection of Santa Monica’s motion to dismiss Riel’s complaint; she said that if political history (or lack thereof) is going to be factor in whether someone is going to be hired, that has be made clear as part of the job description.

Moving onto the Oaks Initiative, Hueston made an excellent and common sense suggestion that enforcement of the law be entrusted to an attorney in the Criminal Division of the City Attorney’s office. Although under the City Attorney’s purview, the Criminal Division nearly always operates independently and in any case does not give legal advice to the City Council. Having a designated attorney in the Criminal Division, who would not report to the City Attorney on Oaks matters, would seem to solve the problem of the City Attorney having conflicts of interest when investigating councilmembers.

In last week’s post about Hueston’s report I wrote about how Hueston was able to interview City Attorney Marsha Moutrie and shed more light on the interplay between her and City Manager Rod Gould preceding Gould’s decision to fire Riel. Hueston also interviewed people who had been involved in the Riel hiring process, but who had not given depositions in the lawsuit. Information from them has given us a better understanding of what Riel’s mindset might have been when, in the fateful phone call of May 23, 2014 with Gould, he asked her to explain why she had not revealed her past political activities in the interview process. It was her answer to Gould’s question, namely that she had disclosed her political past, that angered him and led to her being fired.

Why did Riel answer that way? The answer now seems to be that Riel had in fact disclosed her past political activities, or had at least disclosed enough to believe in good faith that she had been open about them. On page 13 of his report Hueston recounts testimony from a member of the panel that interviewed Riel for the job (a panelist who requested anonymity) that this panelist supported Riel for the job precisely because Riel had been upfront about her past involvement in Santa Monica politics (and that this showed she was comfortable with politics). Although the panelist could not recall if Riel’s disclosures extended to disclosing that she had worked on campaigns for councilmembers (or against them, as in the case of O’Connor), this could easily explain why Riel had in that phone call with Gould told him that she had disclosed her political activities.

It’s too bad that Gould did not know about what Riel had disclosed in the interview process. If he had, he might have been able to diffuse O’Connor or at least not become angry himself. As it is, again this is evidence that rule number one should be that if there is a process, then trust it.

One gripe I have about Hueston’s report is that he didn’t interview Riel, who would have been able to tell Hueston what she disclosed during the hiring process. The reason Hueston gives is that Riel requested compensation for her time, as well as that her attorney be paid to attend the interview. In Hueston’s opinion he already had enough testimony from Riel from her lawsuit deposition and the City didn’t need to spend the money. In my opinion, Riel’s requests were perfectly reasonable, and I don’t understand why Hueston (or if he didn’t have the authority, whoever did) didn’t authorize the expenditure. The City is paying something like $400,000 (or more) for Hueston’s investigation; it would have been worth a few thousand dollars more to hear from the person who was at the center of the controversy, particularly with respect to questions that didn’t come up in her deposition.

Alas, the upshot is that Riel comes across as mercenary, which is unfair. As I said, her requests for compensation and for her lawyer’s presence in the interview were reasonable. After enduring litigation, even if you prevail, there’s no reason to be philanthropic with the other side, and you certainly shouldn’t talk to them without your lawyer. I haven’t agreed much with Diana Gordon, of the Santa Monica Coalition for a Livable City, about the Riel controversy, but Gordon was 100% correct when she spoke Tuesday night about how in all the uproar about O’Connor and Gould, we tend to forget what a victim Riel was.

While I would never call City Attorney Marsha Moutrie a victim, she is being victimized by a growing meme that she was grossly incompetent in not advising Gould that he would violate Riel’s First Amendment rights if he fired her. As I said in my post last week, Moutrie’s advice that Gould could fire Riel because she was an at-will employee turned out to be bad advice when Judge O’Connell rejected, mostly on First Amendment grounds, the City’s motion to dismiss Riel’s complaint. There’s nothing, however, in O’Connell’s ruling, the only legal ruling on these questions I know of in the case, that indicates that the issue was cut and dried.

But that’s not according to how the story is being spun. At Tuesday’s City Council meeting a resident said that according to the ruling any “first year law student” should have known that Gould would violate Riel’s free speech rights if he fired her. That was just the start. By the time, a little later in the evening, that Councilmember Sue Himmelrich was giving her two cents, she said (quoting from the Daily Press’s coverage), “I agree that the federal court did say that even a first grader would know this was a violation of her federal rights.”

I know that all first graders in Santa Monica are brilliant, but this seems to take hyperbole to a new level. In fact, Judge O’Connell had to use 19 closely reasoned, single-spaced pages to conclude that notwithstanding the basic rule that in public employee First Amendment cases public employers have “wide discretion and control over the management of their personnel and internal affairs,” the ultimate burden of proof, after Riel had satisfied a preliminary threshold, was on the City to prove that Riel’s rights had not been violated and the case should go to trial. Even following the rule that on a motion to dismiss everything in a complaint must be viewed in the plaintiff’s favor, O’Connell’s decision was not a slam-dunk. (For more on Judge O’Connell’s ruling, see my post from Oct. 16.)

I word-searched O’Connell’s ruling for “first year” and “first grader” and didn’t come up with any hits. Someone please tell me if there is another ruling in the case I don’t know about, and I’ll correct myself, but until then I’ll attribute Moutrie’s bad advice to human fallibility and the complexity of the law, rather than to not having the legal knowledge of a six-year-old.

Thanks for reading.